Applicant Name: ?????
Application Receipt Date: 2010/06/02 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: Issue 1. The applicant, states in effect through counsel, that his discharge is inequitable because he suffers from PTSD, he tested positive for cocaine but does not remember it because he had been drinking, he completed ASAP on 8 March 2006, during his combat service in Iraq and Afghanistan he saw horrible things, during his leave he became depressed and suicidal, and that he had good service which included two combat tours.
Issue 2. The narrative reason for his discharge is inequitable because he should have been discharged under the provisions of paragraph 5-17 and requests a medical discharge under the provisions of AR 635-40 as a result of his chronic PTSD.
Issue 3. The narrative reason for his discharge as currently listed (pattern of misconduct) is inequitable. He requests that it be changed to Secretarial Authority.
II. Were Proper Discharge and Separation Authority procedures followed?
Tender Offer: NA
See Attachments: Legal Medical Minority Opinion Exhibits
III. Discharge Under Review
Unit CDR Recommended Discharge: Date: 070410
Discharge Received: Date: 070521 Chapter: 14-12b AR: 635-200
Reason: Pattern of Misconduct RE: SPD: JKA Unit/Location: Rear Det, 1-325 IN Bn, Fort Bragg, NC
Time Lost: None
Article 15s (Charges/Dates/Punishment): 060323, wrongfully used cocaine (060204-060207), reduction to E-1, forfeiture of $636 for two months, 45 days of extra duty and restriction (FG)
070125, failed to report to his designated place of duty (070108), reduction to E-1, forfeiture of $303, 30 days of restriction and 14 days of extra duty, the entire punishment was suspended (CG)
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 17
Current ENL Date: 040603 Current ENL Term: 5 Years ?????
Current ENL Service: 02 Yrs, 11Mos, 19Days ?????
Total Service: 02 Yrs, 11Mos, 19Days ?????
Previous Discharges: None
Highest Grade: E-3 Performance Ratings Available: Yes No
MOS: 11B1P/ Infantryman GT: 116 EDU: HS Grad Overseas: SWA Combat: Afghanistan (050716-051109), Iraq (060718-061220)
Decorations/Awards: AAM, VUA, NDSM, ACM, GWOTSM, ICM, ASR, NM, CIB
V. Post-Discharge Activity
City, State: ?????
Post Service Accomplishments: None listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 10 April 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconductfor failing to report to his designated place of duty (070108), wrongfully using cocaine (060131-060207), and drinking while under the age of 21, with a general, under honorable conditions discharge. He was advised of his rights.
On 10 April 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit submitted a statement in his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.
On 26 April 2007, the separation authority waived further rehabilitative efforts and directed the applicant be discharged with a characterization of service of general, under honorable conditions.
b. Legal Basis for Separation:
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate, however, a general, under honorable conditions or an honorable discharge may be granted.
c. Response to Issues, Recommendation and Rationale:
After a careful review of all the applicants military records, and the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.
The analyst determined that the applicants discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.
The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicants service mitigated the misconduct or poor duty performance.
Issue 1 is rejected. The analyst acknowledges the applicant's successful transition to civilian life and noted the diagnosis of PTSD outlined in the documents with his application. However, in review of the applicants entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 24 January 2007, the applicant underwent a mental evaluation which indicates that he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. The analyst concluded that just because the applicant suffers from PTSD does not mean he doesn't know the difference between right and wrong or that he did not have control over his behavior. There are many Soldiers with the same condition that complete their service successfully.
Further, the analyst noted the applicants in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review and his two combat tours. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements, and the documented actions under Article 15 of the Uniformed Code of Military Justice. Just because he does not remember doing the cocaine does not absolve him from his misconduct.
The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a fully honorable discharge. He completed ASAP on 8 March 2006, as stated in the application, however, subsequent incidents of misconduct contributed to his overall pattern of misconduct as shown by the Article 15 he received on 25 January 2007 and other negative counseling statements in the record.
The analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
Issue 2 is rejected. The applicant contends that he should have been medically discharged; however, the analyst determined that Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition like personality or adjustment disorders solely to spare a Soldier who may have committed serious acts of misconduct. Further, the Army Discharge Review Board does not have the authority to change a discharge reason to medical. If the applicant believes he has all the required documentation to support a medical discharge, he should apply to the ABCMR using DD Form 149, which can be obtained online.
Issue 3 is rejected. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct and the separation code is "JKA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation.
Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 5 January 2011 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: Yes
Witnesses/Observers: NA
Exhibits Submitted: Counsels statement of facts and issues for consideration, DD Form 214, www extract of combat operations, separation packet, ASAP certificate of completion, medical documents (50 pages), counseling statements, report of mental evaluation, Article 15, and discharge orders.
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review and considering the analysts recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 0 No change 5
Reason - Change 0 No change 5
(Board member names available upon request)
EDGAR J. YANGER
Colonel, U.S. Army
X. Board Action Directed President, Army Discharge Review Board
Issue a new DD Form 214
Change Characterization to:
Change Reason to: NA
Other: NA
RE Code:
Grade Restoration: No Yes Grade: NA
Legend:
AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial
BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial
CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge
DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable
FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20100016001
______________________________________________________________________________
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